3-2009 NEWS & A NALYSIS 39 ELR 10201
It once might have seemed that the federal policy of pro-
moting environmental justice was on a collision course
with limitations the Equal Protection Clause imposes on
federal actions to benet minorities. In February 1994, Execu-
tive Order (EO) 12868 d irected federal agencies to take spe-
cial steps to ensure environmental protection for low-income
and minority communities.1 In June of the following year, the
U.S. Supreme Court eectively outlawed using race in fed-
eral decisionmak ing by subjecting such uses to strict judicial
scrutiny,2 a standard so rigorous and demanding that it ha s
1. EO 12868, Federal Actions to Address Environmental Justice on Minority Pop-
ulations and Low-Income Populations (Feb. 11, 1994), §1-101 directs that
[t]o the greatest extent practicable and permitted by law, . . . each federal
agency shall make achieving environmental justice part of its mission by
identifying and addressing, as appropriate, disproportionately high and
adverse human health or environmental eects of its programs, policies
and activities on minority populations and low-income populations in
the United States . . . .
2. “[W]e hold today that all racial classications, imposed by whatever federal,
state, or local governmental actor, must be analyzed by a reviewing court under
strict scrutiny. In other words, such classications are constitutional only if they
are narrowly tailored measures that further compelling governmental interests.”
Adarand Constructors, Inc. v. P
ena, 515 U.S. 200
, 228 (1995).
By contrast, the
use of classications based on the other focus of environmental justice, economic
status, does not require strict scrutiny. San Antonio Independent Sch. Dist. v.
e original purpose of strict scrutiny of racial classications was “to protect
‘discrete and insular minorities from majoritarian prejudice or indierence.’”
City of Richmond v. J.A. Crosson, 488 U.S. 469
, 495 (1989) (quoting United
States v. Carolene Prods., 304 U.S. 144
, 153 n.4 (1938)). us, it was applied
to groups that had been “saddled with such disabilities, or subjected to such a
history of purposeful unequal treatment, or relegated to a position of powerless-
ness as to command extraordinary protection from the majoritarian political
process.” Rodriguez, 411 U.S. at 28.
But the closely divided Court has extended strict scrutiny to racial classica-
tions used to benet minorities. Parents Involved in Community Schs. v. Seattle
Sch. Dist. No.
1, 551 U.S.
__, 127 S. Ct.2738
Seattle School); Adarand,
515 U.S. at 228. Four dissenting Justices reject strict scrutiny for classications to
benet minorities: “No case . . . has ever held that the test of ‘strict scrutiny’ means
that all racial classications . . . must in practice be treated the same.” Seattle School,
127 S. Ct. at 2817 (Breyer, J., dissenting). And Justice Anthony Kennedy, who
joined the majority, wrote separately to suggest that “it is unlikely” that all “race
conscious” mechanisms used in decisionmaking “would demand strict scrutiny to
be found permissible. . . . Strict scrutiny does not apply merely because” a govern-
mental decision “is performed with consciousness of race,” and “a constitutional
violation does not occur whenever a decisionmaker considers the impact a given
been described as “strict in theory, fatal in fact.”3
No such collision occurred. Not only have t here been no
signicant reported decisions applying strict scrutiny to gov-
ernment actions to promote environmental justice, but the
U.S. Congress has enacted legislation mandating armative
steps to ensure preferential treatment regarding nancial assis-
tance for minority communities.4 is Article discusses four5
reasons why federal actions to promote environmental justice
are not subject to strict judicial scrutiny: (1) the EO applies
to actions by executive branch agencies exercising the core
governmental f unction of executing federa l law, and Article
III limitations on the judicial power preclude federal courts
from applying strict scrutiny to other branches’ performance
of core governmental functions; (2) equal protection applies to
governmental actions that “ deprive” individuals of a “legally
protected interest,”6 but no individual has such an interest in
a type or level of environmental protection; (3) environmental
justice protects groups—“minority . . . or low income popu-
lations”—but equal protection is an individual, not a group
right7; and (4) a claimant challenging government action
approach might have on [members] of dierent races.” Id. at 2797 (Kennedy, J.,
concurring) (internal citations, quotation omitted).
3. Adarand, 515 U.S. at 237 (internal quotation, citation omited). As discussed
more fully below, challenged actions rarely survive strict scrutiny.
4. e Comprehensive Environmental Response, Compensation, and Liability
to $200,000 for browneld sites, and mandates that the U.S. Environmental
Protection Agency (EPA) “shall establish a system for ranking grant applications
. . . that includes” as a criterion the “extent to which a grant would address or
facilitate the identication and reduction of threats” to the health of minority
communities. at suggests greater attention to minority communities than to
identically situated non-minority communities.
5. Another factor reducing the chance of a collision between the EO and equal
protection is that the EO “focus[es] attention on the environmental and health
conditions in minority communities,” in order “to promote non-discrimination
in Federal programs.” Presidential Memorandum on EO 12868 (Feb. 11, 1994).
Promoting non-discrimination is an important purpose of the Equal Protec-
tion Clause, and the use of racial information is an essential tool in identifying
discrimination. See, e.g ., Williams v. Hansen, 3 26 F.3d 569 (4th Cir. 200 3)
(rejecting the application of strict scrutiny t o a decision to question only m i-
nority polic e ocers in a n investigation to determine if there are discrimi na-
tory practices ).
6. Adarand, 515 U.S. at 211.
7. Id. at 227.
D I A L O G U E
Equal Protection, Strict Scrutiny,
and Actions to Promote
by David F. Coursen
David F. Coursen is an attorney with the U.S. Environmental Protection Agency’s (EPA’s) Oce of General
Counsel. e views expressed are entirely his own and do not necessarily represent the views of EPA or its Oce of
General Counsel. [Editors’ Note: A counterpoint article by Sheila Foster will appear in the May issue.]